DIGEST
OF RECENT DECISIONS FROM CANADA’S COURTS
Michael Hamilton, LL.B. E-mail: jandm@hfx.eastlink.ca
searched the outbuilding. Applicant was
charged with producing a controlled substance and possession of a controlled substance for the purposes of trafficking. The
trial judge found that although the RCMP
demonstrated no bad faith, the warrant was
invalid because the officers had trespassed
on applicant’s property to make their observations. Those observations were excised
from the information to obtain the warrant.
What remained was insufficient for the justice of the peace to issue a warrant. Therefore the subsequent search of the outbuilding was warrantless and unreasonable. The
evidence seized from that outbuilding was
not admissible and applicant was acquitted.
Following the acquittals the director commenced a proceeding against applicant
under the Civil Forfeiture Act (B.C.). Applicant argued that the director was inappropriately persisting in prosecuting an action
that was inextricably connected to the
denial of his Charter rights by the RCMP.
HELD: Application dismissed. There
was nothing inherently abusive about the
director’s pursuing civil proceedings based
upon information received from others.
The director did not infringe or deny applicant’s Charter right. It was the conduct of
the RCMP members that denied the right.
Civil proceedings, deriving their genesis
from the conduct of the RCMP officers, did
not violate the fundamental principles of
justice that supported the community’s
sense of fair play and decency, or undermine the integrity of the judicial process.
Director of Civil Forfeiture v. Sho-
quist, [2011] B.C.J. No. 1681, B.C.S.C.,
Wilson J., Sept. 2/11. Digest No. 3120-
007 (Approx. 16 pp.)
CRIMINAL LAW
STATE-FUNDED COUNSEL – Not in
interests of justice to appoint state-funded counsel for applicant’s appeal
from dismissal of his application to set
aside a guilty plea.
Application for state-funded counsel for
applicant’s appeal from the dismissal of his
application to set aside a guilty plea. Applicant was charged in September 2008 with
sexual exploitation, sexual touching, sexual
touching of a young person and breach of
recognizance. The victim was the 14-year-
old daughter of applicant’s common-law
spouse. Applicant initially pleaded not guilty
to all counts but changed his plea to guilty
on the sexual exploitation charge. His counsel advised the court of the guilty plea and
the Crown in return entered no evidence on
the other counts, which the judge dismissed
for want of prosecution. Applicant was self-represented in a subsequent application for
leave to withdraw his guilty plea. He testified
that he only pleaded guilty to secure his
release, as his bail was to be revoked otherwise and that would have prevented him
from continuing to work to support his pregnant spouse and family. The judge refused to
set aside the plea, finding that applicant’s
plea was voluntary. Applicant filed an appeal
from the judge’s decision dismissing his
application. He was unable to obtain legal
aid representation for his appeal.
HELD: Application dismissed. The
appeal was not complex. It would turn on
whether the Court of Appeal was persuaded
that the judge erred in his assessment of the
voluntariness of applicant’s guilty plea. The
absence of counsel would not handicap
applicant’s access to the evidence necessary
to argue his position. Applicant was capable
of making his point himself. It was not in
the interests of justice to appoint state-
funded counsel.
EMPLOYMENT
& DISMISSAL LAW
WRONGFUL DISMISSAL – Trial
judge did not err in finding respondent
did not abandon his employment but did
err in his calculation of damages.
Appeal from judgment awarding
respondent employee damages for wrongful dismissal. Respondent was hired by
appellant employer as a sales manager in
Nanaimo. Respondent went on long-term
disability leave due to depression and drug
addiction. In order to maintain his long-term disability benefits, respondent entered
a residential treatment program in
Kelowna. He expected to return to work
after completing the program. The insurer
mistakenly sent respondent’s disability
cheque to another address, which delayed
respondent’s return to Nanaimo. Once he
arrived back in Nanaimo, respondent was
busy finding accommodations, contacting a
support group such as Narcotics Anonymous, contacting mental health authorities
and obtaining a referral to a physician. He
did not immediately contact appellant or
return to work. When neither the insurer
nor appellant could contact respondent for
several days, the insurer terminated
respondent’s disability benefits and appellant concluded that respondent had abandoned his employment. The trial judge
found that it was unreasonable for appellant to conclude that the respondent had
abandoned his employment in the circumstances. The judge refused to reduce the
damages awarded by the net amount
respondent received from the settlement of
his action against the insurer.
HELD: Appeal allowed in part. The
facts within appellant’s knowledge were not
capable of objectively supporting its conclusion that respondent’s failure to report
for work by a specified date signified an
intention on his part to abandon his
employment. Appellant knew the respondent was waiting for his disability cheque in
order to return to Nanaimo. It was clear
that once he arrived in Nanaimo he would
require time to re-establish himself there.
The trial judge erred, however, in requiring
appellant to prove what portion of the
settlement proceeds related to long-term
disability benefits. The burden of showing
how the settlement proceeds were allocated
should have fallen on respondent, who had
direct knowledge of the basis on which his
action against the insurer was settled.
Appellant was entitled to have the full
amount deducted.
Pereira v. Business Depot Ltd. (c.o.b.
Staples Business Depot), [2011] B.C.J.
No. 1637, B.C.C.A., per Frankel J.A.
(Prowse and Levine JJ.A. concurring),
Aug. 30/11. Digest No. 3120-009
(Approx. 20 pp.)
EVIDENCE (CRIMINAL)
BURDEN OF PROOF – Trial judge
did not shift burden of proof to appellant
when she found lack of specificity in
appellant’s testimony.
Appeal from convictions for unlawful
confinement, assault and robbery. Appellant was estranged from his wife and using
cocaine heavily at the time. He was staying
with W, a friend, in various locations. The
complainant and appellant had met through
W. On March 18, 2010 appellant and the
complainant were both present in W’s
apartment. Appellant appeared stressed out
about rent and other problems. He waved a
knife and appeared angry. The complainant
tried to pacify appellant and asked if he
could leave, but appellant’s companion prevented the complainant’s exit by standing
near the door. Appellant and the other man
became aggressive, throwing a chair at the
complainant when he tried to leave a second
time. They took his keys and wallet. Appellant at one point held the knife to the complainant. Out of fear, the complainant
jumped off the balcony, landing a floor
below. He was admitted to the apartment
below and called police. The complainant
gave a statement to police naming appellant
as his assailant. He correctly identified
appellant from a photo line up. Police executed a warrant at W’s apartment the next
day, but found no forensic evidence linking
appellant to the apartment. In court, the
complainant’s description of appellant differed from his actual physical features and
clothing. Appellant denied he was at W’s
apartment. The judge was satisfied that the
complainant recognized appellant as his
assailant. She found too much linking
appellant to W’s apartment to accept his flat
denial of involvement in the crimes.
HELD: Appeal dismissed. The judge
used due care in observing the complainant
during his testimony and was aware of the
ambiguities and inconsistencies in his
account of the perpetrator’s description.
She took proper notice of the complainant’s
past encounters with appellant in assessing
his ability to identify him and properly
found corroboration of his evidence in
appellant’s association with W and his previous attendance at her apartment. The
judge did not place an evidentiary burden
on appellant in noting the lack of specificity
in his testimony. She validly found that his
evidence contained inconsistencies and was
not required to specifically state that it
failed to raise a reasonable doubt in her
mind as to appellant’s guilt. The burden of
proof was not shifted to appellant.
R. v. Smith, [2011] B.C.J. No. 1665,
B.C.C.A., per Neilson J.A. (Levine and
Groberman JJ. A. concurring), Sept. 2/11.
Digest No. 3120-010 (Approx. 13 pp.)
FAMILY LAW
CHILD WELFARE – Court ordered
that a child attend public school rather
than be home schooled by the father.
CHILD WELFARE – Fresh evidence
supported appellant agency’s position
that child should be made ward of the
Crown without access for the purpose
of adoption.
Appeal from an order dismissing appellant agency’s motion for summary judgment. The agency sought to have the child
made a ward of the Crown without access
for the purpose of adoption. The child,
now four years old, was first apprehended
from the mother in April 2007. The child
was placed with her maternal aunt and
uncle as an in-care kin placement. The
concerns leading to the child’s apprehension included domestic violence and the
mother’s drug addictions. While the
mother had participated in numerous
treatment programs, she had a history of
relapsing. The child had spent six nonconsecutive months of her life in the
mother’s care and the remainder of her
life in the care of her aunt and uncle. The
aunt and uncle wished to adopt the child.
The motions judge dismissed the agency’s
motion as he found that the mother had
demonstrated some ability to deal with
her alcohol issues in the past and therefore her current intensive treatment program could not be said to be doomed to
failure. The agency took the position that
the judge failed to properly consider the
seriousness of the mother’s addiction
issues and her poor track record regarding
rehabilitation. The agency also submitted
that the judge failed to apply the appropriate test in determining the best inter-
